Citation NR: 9610669
Decision Date: 04/17/96 Archive Date: 04/25/96
DOCKET NO. 94-44 646 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Manila,
Philippines
THE ISSUE
Basic eligibility for nonservice-connected pension benefits.
ATTORNEY FOR THE BOARD
M. Colleen Canovas, Associate Counsel
INTRODUCTION
The veteran served on active duty with the U.S. Army as a
Philippine Scout from June 1946 to April 1949.
This matter is before the Board of Veterans’ Appeals (Board)
on appeal from the Department of Veterans Affairs (VA)
Regional Office (RO) in Manila, Philippines.
CONTENTIONS OF APPELLANT ON APPEAL
The veteran contends that he is entitled to nonservice-
connected pension benefits as a result of his service from
June 1946 to April 1949.
DECISION OF THE BOARD
The Board, in accordance with the provisions of 38 U.S.C.A.
§ 7104 (West 1991 & Supp. 1995), has reviewed and considered
all of the evidence and material of record in the veteran's
claims file. Based on its review of the relevant evidence in
this matter, and for the following reasons and bases, it is
the decision of the Board that
the veteran is not eligible for nonservice-connected pension
benefits.
FINDINGS OF FACT
1. The veteran served with the U.S. Army as a Philippine
Scout from June 1946 to April 1949.
2. The veteran does not meet the service eligibility
requirements for VA nonservice-connected pension benefits.
CONCLUSION OF LAW
The veteran does not have qualifying service for nonservice-
connected pension benefits. 38 U.S.C.A. §§ 101, 107, 1521
(West 1991); 38 C.F.R. §§ 3.1, 3.6, 3.8, 3.9 (1995).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
Initially, the Board notes that a determination as to whether
the appellant has submitted a well-grounded claim need not be
addressed. The concept of a well-grounded claim applies to
the character of the evidence presented by the claimant. For
purposes of this decision, as there is no dispute as to the
evidence, but only to the law and its meaning, the concept of
well grounded is not found to be applicable. Sabonis v.
Brown, 6 Vet.App. 426 (1994).
The veteran’s military records indicate that he served with
the U.S. Army as a Philippine Scout from June 1946 to April
1949.
The governing provisions of 38 U.S.C.A. § 1521(a) (West 1991)
provide, in pertinent part, that the VA shall pay a pension
to each veteran of a period of war, who is permanently and
totally disabled, including from a nonservice-connected
disability. The term "veteran" is defined as a person who
served in the active military, naval, or air service, and who
was discharged or released therefrom under conditions other
than dishonorable. 38 U.S.C.A. § 101(2) (West 1991).
“Active military, naval, and air service” includes active
duty; “active duty” means full-time duty in the Armed Forces.
38 C.F.R. § 3.6(a) and (b) (1995). “Armed Forces” means the
United States Army, Navy, Marine Corps, Air Force and Coast
Guard, including their Reserve components. 38 C.F.R. §
3.1(a) (1995).
Service as a Philippine Scout, a member of the Philippine
Commonwealth Army serving with the Armed Forces of the United
States, or as a guerrilla in the recognized guerrilla
service, is considered active U.S. military service for
certain VA purposes. 38 U.S.C.A. § 107 (West 1991); 38
C.F.R. §§ 3.8, 3.9 (1995). However, by statute, some
Philippine service is deemed not to be “active military
service” for the purpose of conferring pension benefits as a
result of such service. This includes “[s]ervice in the
Philippine Scouts” (except service in the Philippine Scouts
prior to October 6, 1945). 38 U.S.C.A. § 107 (b) (West
1991). In addition, Congress determined that persons who
enlisted and reenlisted with the “Philippine Scouts in the
Regular Army between October 6, 1945 and June 30, 1947,
inclusive...” are not entitled to pension benefits.
38 C.F.R. § 3.8 (b) (1995).
Accordingly, those whose service was in the organized
military forces, as a Philippine Scout, after October 6,
1945, while such forces were in the service of the Armed
Forces of the United States, are not entitled to nonservice-
connected pension.
In the instant case, the evidence does not indicate, nor is
it contended, that the veteran served in any capacity other
than as a Philippine Scout from June 1946 to April 1949.
Accordingly, he is not eligible for nonservice-connected
pension. Hence, this claim must be denied.
ORDER
Basic eligibility for nonservice-connected pension benefits
is not established and the appeal is denied.
D. C. SPICKLER
Member, Board of Veterans' Appeals
The Board of Veterans' Appeals Administrative Procedures
Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, 741
(1994), permits a proceeding instituted before the Board to
be assigned to an individual member of the Board for a
determination. This proceeding has been assigned to an
individual member of the Board.
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West
1991 & Supp. 1995), a decision of the Board of Veterans'
Appeals granting less than the complete benefit, or benefits,
sought on appeal is appealable to the United States Court of
Veterans Appeals within 120 days from the date of mailing of
notice of the decision, provided that a Notice of
Disagreement concerning an issue which was before the Board
was filed with the agency of original jurisdiction on or
after November 18, 1988. Veterans' Judicial Review Act,
Pub. L. No. 100-687, § 402, 102 Stat. 4105, 4122 (1988). The
date which appears on the face of this decision constitutes
the date of mailing and the copy of this decision which you
have received is your notice of the action taken on your
appeal by the Board of Veterans' Appeals.
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